On October 23, 1786 — three years before the Constitution replaced the Articles of Confederation, and five years before the Bill of Rights — Congress passed a resolution authorizing the Secretary of Foreign Affairs to open and inspect any letter, when, in his judgment, the “safety or interest of the government requires it.” Suffice it to say, Founding Fathers from the limited government school were not too happy about this.
According to historian Dorothy Ganfield Fowler in her book Unmailable, the resolution led George Washington to complain about mail tampering, and Thomas Jefferson, James Madison, and James Monroe began to write to each other in code to preserve the privacy of their communications.
In fact, the Founding Fathers used encryption before, during, and after the Revolutionary War. Jefferson, in particular, was a prolific user of encrypted communications and even invented a cipher now known as the Jefferson Disk to encrypt and decrypt his communications.
Despite what the government has claimed recently, encrypted communications are not a novelty: they were at the heart of the ideas that led to America’s founding. The Founders believed that privacy of communication — and, consequently, being able to freely express their thoughts — was crucial to a free society. James Madison even partially encrypted his correspondence to Thomas Jefferson where he first proposed the Bill of Rights.
Encryption has always played a key part in American history, but this message has been lost on many of today’s leaders as they work to weaken encryption.
What is encryption?
At the very basic level, encryption is a way to scramble and unscramble information using formulas called “ciphers,” which often rely on unique “keys.” For example: Alice might send a scrambled message to Bob that can be decrypted only by using a key that no one except Bob possesses, so she can be sure that no one else can read their conversation. Today, encryption is used in many areas beyond traditional communications — it’s what ensures that our online bank accounts are secure; it can prevent someone from snooping on your Internet traffic at a coffee shop; and, most importantly, it’s what we rely on to secure our personal devices, like smartphones and computers, which contain our entire lives.
Government officials have started pushing for “backdoors,” where an encryption system is intentionally weakened so that government can access whatever data it wants. But this idea is a nonstarter. Encryption is math, and you can’t manipulate math problems to be solvable by only one specific group of people — for instance, the U.S. government. If the encryption that Alice uses to send a message to Bob is compromised, it is there to exploit for whoever finds it.
Additionally, designing secure computer systems is a hard problem in modern computing. Despite the best efforts of programmers, we regularly hear about vulnerabilities that compromise private information for millions of people. To intentionally introduce vulnerabilities as part of a weakened encryption system is a recipe for disaster — not just for one person or company, but for everyone using that encryption system.
We are arguably living in a “Golden Age of Surveillance,” where the government has more means to monitor its people than ever before. It’s crucial for citizens in a democracy to be able to freely express themselves, and encryption is one of the few tools that actually resists the pervasive surveillance state. As whistleblower Edward Snowden put it, “encryption works.” It’s vital that it continues to work, and that means resisting government-created “backdoors.”
Code is speech.
At the Electronic Frontier Foundation (EFF), we believe that government’s efforts to control encryption by preventing its publication and implementation is a violation of the First Amendment of the Constitution.
The First Amendment protects all manner of expression, including written music and abstract art. Similarly, code is a means for disseminating information and ideas — it doesn’t matter if it’s communicated in a form that isn’t comprehensible to lay people. Many people can’t read a classical music sheet, but that doesn’t mean that the government can restrict the production of Mozart.
The federal courts agreed with us that code is speech when EFF litigated a case in the 1990s called Bernstein v. Department of Justice.
A Berkeley graduate student named Daniel J. Bernstein wanted to publish information about an encryption algorithm he had developed, but he was prohibited from doing so because the government treated such information as “munitions,” akin to weapons or bombs, and required a special license from the State Department to share it — a license it would not grant him.
Mr. Bernstein sued, and, represented by EFF, successfully argued that censoring algorithms is an unconstitutional violation of freedom of speech.
The case remains good law to this day, with similar precedent holding in other courts. Pointedly, Judge Betty Fletcher from the Ninth Circuit Court of Appeals wrote,
The availability and use of secure encryption may … reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights … but also the constitutional rights of each of us as potential recipients of encryption’s bounty.
The government may try to depict encryption as making us unsafe, but the reality is precisely the opposite. It affords private individuals the opportunity to make themselves safe from government’s prying eyes. There will always be criminals who take advantage of technology to do bad things, but we shouldn’t sacrifice everyone’s rights to privacy and free speech in the name of stopping a few bad actors.
Encryption is a human rights issue.
Moving beyond the United States, encryption is a global human rights issue. As a 2015 report from the United Nation’s Office of the High Commissioner for Human Rights notes, “Encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.”
The report further emphasizes that governments demanding encryption backdoors “have not demonstrated that criminal or terrorist use of encryption serves as an insuperable barrier to law enforcement objectives.” In other words, when law enforcement asks for compromised encryption, it doesn’t mean that encryption is actually what’s stopping them from investigating those crimes.
After examining the encryption policies of several countries — including Russia, Colombia, India, Morocco, Pakistan, and the United States — Amnesty International concluded:
In the digital age, access to and use of encryption is an enabler of the right to privacy. Because encryption can protect communications from spying, it can help people share their opinion with others without reprisals, access information on the web and organize with others against injustice.
Encryption is therefore also an enabler of the rights to freedom of expression, information and opinion, and also has an impact on the rights to freedom of peaceful assembly, association and other human rights. Encryption is a particularly critical tool for human rights defenders, activists and journalists, all of whom rely on it with increasing frequency to protect their security and that of others against unlawful surveillance.
No matter where someone resides in the world, they deserve strong encryption.
Our encrypted communications allow us to have privacy and to freely express ourselves as human beings. Governments everywhere have developed extraordinary ways to monitor their citizens, and so it’s become extraordinarily important that we have strong encryption as a bulwark for privacy and free thought against the awesome power of the surveillance state.